Prosecutors in New York have filed a subpoena with twitter to obtain the twitter history for an Occupy protesters named Malcolm Harris. Harris participated in an occupy protest that blocked the Brooklyn Bridge in October and is being prosecuted for disorderly conduct. As part of that prosecution, the District Attorney's Office that is prosecuting the case filed a subpoena with twitter to obtain Harris' twitter history over a few months surrounding the protest.

Harris found out about the subpoena from twitter and tried to stop it on his own, but the judge prosecuting the case blocked Harris saying he didn't have to legal grounds to fight a third-party subpoena. The judge likened Harris to account holder at a bank that doesn't have the legal right to fight a subpoena seeking account details filed against the bank.

Luckily for Harris, twitter is stepping up and fighting subpoena on his behalf. Twitter file a motion in New York state court yesterday asking the judge to block subpoena that would force it to turn over user account data. The prosecutors in the case hit twitter with a 2703 order that allows access to some types of user data without a warrant under the Stored Communications Act.

Twitter is arguing that the data belongs to Harris under twitter's terms of service and being forced to hand over that data would violate those terms of service and the SCA. Twitter is also arguing that handing over the data would violate the fourth amendment protections against search without a warrant. The last argument is that twitter is in California and prosecutors in New York would need to make a case with a California court to obtain twitter data. According to Forbes, twitter actually told Harris the court was seeking his data.

The ACLU is supporting twitter with one of its staff attorneys Aden Fine writing, "This is a big deal. Law enforcement agencies—both the federal government and state and city entities—are becoming increasingly aggressive in their attempts to obtain information about what people are doing on the Internet. And while the individual Internet users can try to defend their rights in the rare circumstances in which they find out about the requests before their information is turned over, that may not be enough. Indeed, even though Twitter provided notice to the Twitter user in this particular case, and even though he was able to get an attorney to file a motion seeking to quash the subpoena, the court found that the Twitter user did not have legal “standing” to challenge the D.A.’s subpoena."

The ACLU also sent the New York Court overseeing the case a memorandum in support of twitter's motion. That document can be viewed here. Whether or not what the ACLU thinks will have any bearing on the case remains to be seen.

quote: A warrant gives the police the right to search. A subpoena compels the subject to produce something. There will be no warrant here. They don't need to search twitter. They know twitter has the records. They want the records produced, which is what the subpoena is for.

That's kinda the whole point to this. Twitter is arguing that they don't own the records. That they're acting like a storage warehouse which just happens to be storing some of Harris' personal effects and displaying them as he sees fit.

So by their argument, a subpoena is insufficient. Much like a court can't subpoena a landlord to turn over papers a renter has stored in his apartment - a warrant is required.

After thinking about it a bit, I think Twitter is right. The closest analogy I can think of is phone call logs. A court can subpoena your phone call history from the phone company. That is, they could subpoena Twitter to hand over records of when Harris logged in and when he made tweets. But to wiretap and get the contents of the phone calls requires a warrant. That the conversation was carried over the phone company's equipment, and the phone company had to replicate the speech to provide the service is immaterial. It is still considered to be the caller's private info, not the phone company's.

What might be different is whether Harris allowed anyone to subscribe to his feed (it was public), or he only let select people subscribe (it was private).

Twitter is being stupid with the search warrant argument. They're not searching anything. They have the records and admit it. They say they don't own it, that's a different issue. But they have it and they control it.

A phone call has no analogy with Twitter which is meant to broadcast. A phone call has an expectation of privacy. Twitter and Facebook have been ruled over and over again to not be private. Direct Messages and Facebook messages ... maybe. I'm not sure on case law about that yet.

If you and I walk down a public street and chat privately and someone snoops on us with one of those NFL Dishes guess what, not an invasion of privacy.

He went on a broadcasting service and broadcasted, and is now claiming privacy? I don't think so. New York has already ruled in some Civil cases (not criminal so rules of evidence are different) that handing over private data does not violate the SCA.

I'm not siding with the police and prosecution here, but that is the reality these days. Courts always err on the side of LEA's

1) Just because YOU feel Twitter is meant to broadcast, that doesn't translate into some other user having the same intention. If someone doesn't set tweets to be public, then yes they are private. Even if you did say something in public that strangers could hear, you are not compelled to provide evidence against yourself of what you said at a later date.

2) If you and I walk down a public street chatting privately and for another person to hear, they have to employ special listening devices to eavesdrop without all parties consent to this, yes that is illegal.

3) You could invite the public into your home on Sunday, then cease to invite the public into your home on any day after then. That you invited people into your home in the past does not mean you extend that courtesy indefinitely to anyone and everyone, does not in itself give LEA's the right to search your home later without warrant (or cause to get one).